HL Deb 27 July 1855 vol 139 cc1430-8

* My Lords, according to the notice, I would call the attention of my noble and learned Friend (Lord Chancellor) and of your Lordships, to the Statute Law Commission, of which he is the head, and I have the honour of being a Member; but it is chiefly in order to obtain its aid in examining the details of the important Bill which I am about to lay before you, and the subject of which weft deserves your deliberate consideration—the great subject of Religious Liberty. I will not now, any more than on our recent discussions, and for the reasons I then gave, consent to use the phrase toleration, except only as denoting the contrary of intolerance, which, unhappily, has too often had a real existence. I object altogether to speaking of that, the existence of which I deny, the favour, or boon, or privilege of toleration; as if those who conscientiously differ with us in religious belief or observance were to thank us for allowing them, suffering them, bear ing with them—any more than we have to thank them for bearing with us while we hold our opinions and exercise our worship. To hold opinions and to worship God according to his conscience is the absolute, imprescriptible right of every man; as much at the least in this most important matter as it is in trifling things his right to do what he pleases, so he breaks no law and invades no right—as much his right as to leave his dwelling and walk upon the side of the street which he prefers; and if you tell him you suffer him to do so, that you tolerate him in doing so, he may well answer that he owes you no thanks for letting him do what you have not the shadow of a right to prevent; and he may say, "In return for your letting me walk on the left-hand side of the way, I will tolerate you in walking on the right hand." At the bottom of all this, there lurks the notion that they who pretend to tolerate are entitled, if they please, to prohibit; that they might withhold the leave they grant; in other words, that they might require conformity to their opinions on pain of temporal penalty; so that really this pretence of toleration is at the very foundation of the code of persecution. Of that code, happily, the improved principles and temper of recent times has abrogated the most important enactments. Yet it is too certain that considerable remains of it continue to disfigure the Statute-book, to the disgrace of our jurisprudence. Some of those penal laws are in practice obsolete; but even these should not be suffered to remain. When my noble and learned Friend not now present (Lord Lyndhurst), by his wise and just measure of 1846, swept away somewhere about thirty of those old penal laws, no one opposed on the ground that such Statutes as that of Hen. III., requiring Jews to wear a badge, were not very likely to be enforced in these days. The wisdom of the Legislature decreed that they and other such obsolete enactments should no longer deface our legal system. Indeed many penalties believed to be obsolete, are, as I lately showed your Lordships, liable to be quickened into noxious life by the malice, or the avarice, or the zeal of individuals. Of this it is needless to give more examples than were cited both in 1846 and lately in the debate on this subject. But the real state of the law in matters affecting the sacred rights of conscience, is I believe very little known, and I will give a few instances which abundantly prove how needful is such a revision of the Statute-book as I recommend.

Much of the evil has arisen from careless legislation, though a good part also from design, through mistaken zeal and erroneous views of the State's religious duty. Of mistakes a fruitful source has been the careless making of inconsistent enactments, the leaving it uncertain whether a law is repealed or not; the partial instead of total abrogation of a provision; the substituting a new remedy or mode of proceeding for a former one, without abolishing the old. To give instances of what results from these modes of making laws would be as endless as it is easy. I may mention the uncertainty in which we are left whether certain penal Acts still exist or not. Persons have ever been puzzled to find that such Statute as the famous Act of the Six Articles, the 31 Hen. VIII. is entirely repealed—that which got the name of the Bloody Bill, from the Protestants, as well it might, for one provision condemned all to be burnt who denied the real presence. The King had so far joined the Reformation as to pillage the Catholic Church; but being minded to retain his title of Defender of the Faith, he chose to abide by the fundamental doctrine of that faith, and consigned to the flames all who differed with him. The Act was repealed by the 1 Edw. 6, c. 12; but some half-dozen Statutes have since been made repealing different parts of that repealing Act, and it has been said that no one can now confidently believe in the whole of the Six Articles being abrogated. However, on this I entertain no doubt; the 3rd section of the Act of Edward plainly repeals, and has, as regards that repeal, not been, repealed. But let us look at the history of the old writ de excommunicate capiendo. The Statute of Elizabeth for the due execution of that writ was not repealed by Sir William Scott when he desired to substitute a new mode of procedure, by the writ de contumace; and his Act 53 Geo. III. 127, saves the process of excommunication for spiritual offences, just as the Statute of 29 Car. 2, c. 9, abolishing the writ de heritico comburendo, saves the ecclesiastical jurisdiction as to all punishment short of death. Accordingly there remains on our Statute-book the enumeration of all the heads of proceeding for excommunication, notwithstanding Lord Stowell's Act; the 13th section of the Act of Elizabeth is un-repealed, and it enumerates the offences cognisable for excommunication as schism, incontinence, and others, among the rest usury, which, nevertheless, has now by a late Act been declared no offence at all by the civil law. Probably this might prevent it from being any longer treated as a ground of excommunication. Yet there is no doubt whatever that we have the two laws standing together, one of which permits the taking any rate of interest, and the other declares whosoever takes more than a certain rate, worthy of excommunication.

But if instances are desired of evil actually suffered from the continuance of intolerant laws, I fear we may resort to provisions which the law has wilfully made, contrary to every principle of justice, and wholly subversive of religious liberty, subjecting men to penalties and disabilities on account of the nature of their belief and their mode of worship. In the spirit of intolerance and persecution some of these laws had their origin; laws suited to the darker age in which they were framed. Others were framed rather against the political than the religious tenets of the professor, but being conceived in terms of great generality, pressed upon parties which were not within the contemplation of the Legislature; as the enactments levelled at Roman Catholics, and which hit Protestant Dissenters who never were in the lawgiver's contemplation, and the provision meant to give certain declarations on secular objects a peculiar solemnity, without the least regard to the religious belief of those who were required to declare, and which thus by mere accident operated against a whole body of persons whom the authors of the law never though of, and never dreamt would be affected by it. The continuance of all these enactments on our Statute-book, long after the circumstances have ceased to exist which alone could justify their ever having beer made for however short a time, is one of the greatest scandals to which our system, whether legal or political, is exposed.

I ask your Lordships' attention to one or two examples of what I am describing, If a natural born subject of the Crown happens to have a son born abroad, by the Statutes of Anne and George II., that son has all the rights of a British subject; but his grandson, the son of that son so naturalised by the Statute, has not the same rights. An Act was passed early in the reign of George III.—13 Geo. III., 3. 127—which professed to place the grandchildren on the same footing with the children. But, unfortunately, by reference to other Acts, this naturalisation in the grandchild's case was confined to Protestants, and was withheld from both Roman Catholics and Jews; for no one can claim the benefit of the Act without taking the Sacrament in some church or chapel of the Protestant worship. There is no little obscurity in the statutory provisions on these subjects, an obscurity little creditable to our principles: and whoever examines the evidence taken some years ago before the House of Commons Committee on the Alien and Naturalisation Law, will find that able and learned person, and sound lawyer, my late friend, Mr. Charles Williams Wynne, describing the difficulties in which he felt himself placed in administering the concerns of wards and others for whom he was trustee, by the confusion and obscurity in the law. The result, however, of whatever examination you give to the subject, is as I have stated it; and the opinion lately taken of the very highest legal authority on subjects of this description, declares that there exists no doubt on the matter, and that neither Jew nor Catholic can be naturalised, under the Acts, without abandoning their own religion.

Now, I pray your Lordships to mark what is the consequence of leaving such laws on our Statute-book. The late Duke of Gloucester was born at Rome; the present Duke of Devonshire at Paris; both were naturalised by the Statutes of Anne and George II.; and if either had a son also born abroad, the Act Geo. III. applied, and naturalisation was effected, because in their case there was no difficulty in taking the Sacramental Test. But how would it be if the Duke of Norfolk had been born abroad and his son also? The Duke would be naturalised; his heir apparent could not be, unless he did what all who know that able and excellent individual must be aware he would not do, declare himself a Protestant by taking the Sacrament in one of our churches; and thus he would forfeit the right to inherit the princely domains, which form the apanage of this great title.

Others of our laws press upon Protestant Dissenters. When I moved the Bill, the other day, for correcting an error in the Registration Act of 1852, I stated how much these most respectable sectaries felt aggrieved by the continued requirement of Registration, as a condition of relieving their chapels from the penalties demanded by the Conventicle Act of Charles II. and the subsequent Statute of 1812, somewhat mitigating that barbarous law, which it only in name repealed, for it put other penalties in its place.

The Dissenters all complain, and, in my opinion, justly complain of registry being required before they can be relieved from these penalties—before their meetinghouses can be deemed legal, and the congregations escape the consequences of the intolerant laws first made nearly two centuries ago. That this exigency of the law may and often does produce practical evils to those bodies is certain. If the requisites are not complied with the consequences attach. Thus the licence to celebrate marriages in their chapels depends upon their being duly registered, that is, registered according to the formalities prescribed. Opinions have been taken on the validity of marriages celebrated in chapels which had licences but after an informal registration; and the greatest anxiety has been felt on this important matter from the conflict of those opinions. On one point, however, there can be no conflict; an unregistered chapel licensed as such within the Act making the marriages there valid has not valid licences; and we saw that between six and seven thousand chapels had been opened since 1852, in many of which marriages had been celebrated, to make which valid we had to pass the Act a few days ago.

The exemption from rates of such meeting-houses all depend upon due registration.—But I pray you to look back upon what injustice the Registration Law worked some years ago, when those disgraceful riots took place at Birmingham, from the fanatical zeal of a mob, countenanced if not instigated by persons in a respectable station, whose ecclesiastical bigotry and intolerance was exacerbated by the prejudices of a political party—when the meeting-house of Dr. Priestly was destroyed, and the house with the library and the manuscripts of that illustrious philosopher, and the apparatus with which he had made the discoveries that have given him an imperishable renown. For his private losses he obtained compensation by his action against the hundred; but for the injuries to the chapel no action could be maintained, because the registration had not taken place. Indeed, as it was an Unitarian meeting-house, it was not within the Statute of William III., the Act of 1813 having, for the first time, extended the protection of such buildings. However, even after that latter Act had passed, a defective registration would have deprived the proprietors of their recourse against the hundred, and would have enabled the rioters to escape the penalty of the law. By the Riot Act—1 Geo. 1. s. 2, c. 5—the demolition of a chapel is a capital offence, but only of a chapel duly registered. To destroy any other, any one for instance of the thousands unduly registered since 1852, though a crime of just as deep a dye as makes the offence punishable with death if committed against a registered meeting-house, is only a trespass, or, at most, under the recent Acts, punishable as a misdemeanor by a small fine.

It is now proposed that all these remains of the intolerant laws, made in other times in circumstances which no longer exist to justify or even to extenuate such enactments, should be swept from our Statute-book, and that no fetter upon complete religious liberty should any longer be continued. I speak as much for the Church, of which I am entirely and willingly a member, as for the sects with whom I altogether differ in opinion. The Church can well rest upon her own great merits, and is only weakened as well as dishonoured by those intolerant laws which short sighted partisans vainly regard as her pillars. She will be strengthened as well as exalted by their removal. We may hold the Dissenters to be in error, as they may regard our faith to be erroneous. Each party may conscientiously oppose the other in argument and freely discuss their points of difference, whether in doctrine or in discipline. None are to be regarded as unimportant which any men conscientiously believe to he material. A celebrated father of the primitive Church has, I believe, been parodied by a modern prelate in his famous dictum—"In necessariis unitas, in dubiis libertas, in omnibus caritas." The modern substitute for St. Augustine is not less intolerant and, to my mind, much more absurd—"In essentials liberty, in unimportant things unity, in all charity." In only the last point of the proposition can I agree. We have no right to regard anything as trifling, either in doctrine or discipline, which our fellow Christians hold to be momentous—whether it be matter of religious dogma, or of ecclesiastical observance—as that the priest shall turn his face to the altar or avert it, shall read in one part of the church or another, with or without lights, or have a stone placed in one portion or another. We may ourselves entirely disregard all this, because not agreeing with our views, but I deny the right to treat it as insignificant and call it mummery, if any body of worshipers sincerely believe it to be important. Above all, we have no right to visit this conscientious difference of opinion upon those who hold it, with any penalty or disability whatever of a temporal nature; and you may depend upon it that they who have little or no religion will be the most ready to maltreat men upon the ground of differences being insignificant. If the observances are inconsistent with the ecclesiastical discipline of the sects or of the Church, it is for the spiritual authorities to take cognizance of them. The State is bound for the sake of Religious as well as of Civil liberty, to withdraw from the controversy, and leave it to be conducted by the spiritual power.

The Bill which I now present to your Lordships is framed upon this, the true principle set forth in the preamble, that it is contrary to the interests of religion and inconsistent with civil liberty that any person should be subject to any pains, penalties, or disabilities whatever on account of his religious opinions, or his mode of worship. It repeals all the Acts or parts of Acts passed inconsistent with this great principle; and of about 120 such our Statute-book will thus be got rid. I trust your Lordships will now give the Bill a first reading, and that my noble and learned Friend will see the propriety of referring it to the examination of the commission of which he is the head. The labours of my very able and learned Friend (Mr. Field), of the Chancery Bar, as well as his brother, the eminent solicitor, have enabled me to lay it before your Lordships. Of their merits it is difficult for me to speak too highly; and they represent the Protestant Dissenting body, I have further had the invaluable assistance of Mr. Anstey, who belongs to the Romish Church, and of whom I will only say that a more learned, indefatigable, and useful fellow-labourer it is impossible that any one can have in such works. His Lordship then presented a Bill to repeal all Pains, Penalties, and Disabilities on account of Religious opinions; and moved that it be now read 1a.


thought no one could entertain any objection to the suggestion that the Bill, after being read a first time, should be referred to the Statute Law Commission. Undoubtedly it did not, at the first blush, appear very germane to the business of a Commission, whose duty was to consolidate laws, that they should take into hand the framing of an Act to repeal, and not consolidate, a great many of the existing laws; but he thought it extremely important, with a view to the consolidation of what was desirable to be retained, also to get rid of that which was superfluous.

Bill read 1a.

House adjourned to Monday next.